The story that Phil reported on last week has hit the headlines. Multiple media sources are reporting on the search of defense counsel offices at Camp Pendleton. From the Washington Post:

Investigators raided the offices May 2 in search of a cellphone tied to a case being tried at the base, north of San Diego, Lt. Col. Clay Plummer told The Associated Press.

“This is just unacceptable,” said Plummer, the Marine Corps’ regional defense counsel for the West. “Just think of the U.S. federal Marshals or FBI raiding a public defender’s office, that’s what this is the equivalent to. It’s crazy.”

Marine Corps officials called it a “rare event” and said a neutral, independent judge advocate has been appointed to review the seized evidence to identify whether any potential privileged material was improperly disclosed. Also to be reviewed is how the search was conducted.

Officials said they could not comment further because of pending litigation and the independent review.

Defense lawyers were contacting hundreds of clients to inform them that military law enforcement officials had opened case files, Plummer said.

The search’s authorization was granted by the area commander. Two armed, uniformed officers and members of the criminal investigative division came into the building and did not allow anyone to leave while they searched for the cellphone, Plummer said. They searched every attorney’s office — including those with no relation to the case — and continued to search even after locating the cellphone, he said.

Gotta wonder why they got the authorization from a commander instead of a judge. Hmmmm. Could it be that they asked and a judge said no? Could it be that they didn’t bother asking a judge because they anticipated an answer of NO!

Yet another story with no one to root for; DC have an obligation to evaluate all evidence but taking possession of a cell phone is like accepting a grenade…as for the govt, well it looks like they pulled the pin and kept digging.

Advocaat: Agree that the defense attorney involved needs to know the risks (and likely prohibition) of taking the evidence and that the search should have been authorized by a judge after notice given through the defense chain. However, the search for the phone continuing after it was found is potentially disastrous for the Government in those cases that were accessed which is why it is hard to imagine an SJA signing off on this. Was this a trial counsel and investigators acting without thinking?

While it is hard to come up with a reason why the counsel would have had the phone, if these clowns came knocking on my door I, and many current and former defense counsel I know, would have told them to arrest me, shoot me or GTFO.

Senators Gillibrand and McCaskill probably won’t hold up anyone’s promotion bc of this fiasco. Probably because, inter alia, they were never criminal defense counsel……nor did they serve in the military…….but it’s good to see we have two diverse individuals leading the charge on fundamentally changing the UCMJ TO A completely new system that everyone has confidence in.

It was just a matter of time before this got national attention. Between this event and the attempt to handicap the defense in the LTC Morse case, it is inevitable that the American people themselves will (or should) question the fairness and justness of the UCMJ and military justice.

Advocaat is correct–there is no one here for whom to root. Defense Counsel screwed up-maybe due to inexperience or maybe due to a poor choice in a rather difficult area of potentially conflicting professional ethics and obligations. Assuming that the DCs screwup was not deliberate (which would be really bad), the government’s misconduct is arguably worse in that they knew better and delibrately chose to do the wrong thing. Depending upon the severity of the DCs screwup–it could be career ending. And the consequences to the government for their screwup should be just as bad.

How can I say that they knew better? Because not a single LEO is unfamiliar with the search requirements of the 4th Amendment, or the legal privilege. Even newbys (junior enlisted MPs) receive the necessary training on the 4th Amendment, and these agents were not newbys. They are more senior and more experienced than newbys (even if they are new agents) and they (possibly with the advice and consent of a government JAG–which magnifies the professional impropriety) saw an opportunity and took full advantage to get into the defense files. In fact, it is impossible to quantify the harm since how much harm comes from simply knowing something the government shouldn’t know–even if unused or unseable in court? That which has been seen cannot be unseen. Remember this fact when reading the next paragraphs.

In my professional opinion, if, upon Defense motion in the affected cases, the government cannot justify its conduct, the only appropriate sanction for the government’s even bigger screw up is that every case affected (e.g., one page looked at, one file opened, etc.) by the improper search within and before the passage of two hours of discovering the phone evidence should result in the complete dismissal of all charges with prejudice–even if the Defense cannot articulate with any precision the actual prejudice to the accused from the government’s conduct.

A harsh result? Yes, and deliberately so. Any allowance to the government in this area through the use of harmless error analysis will fail to discourage future such conduct. If the sanction is not deliberately harsh, the the government will continue to misbehave like this and then justify it by arguing harmless error every time–and if such is approved by the courts–the regular LE practice will become “do whatever you can do to get away with as much as you can until called on it.” And without the burden on the government to justify their conduct in the first place, the Defense will always be disadvantaged when trying to prove harm in a particular case. And failing that, the government still gets a sneak peek at privileged files–which is in fact harmful–even if not quantifiable. In such a situation, there is no systemic check on the government’s misconduct–especially when we know that when left to their own devices, they cannot be trusted to do the right thing when no one is looking (no matter their level of training). And when people are looking, if the only response is “yes, you shouldn’t have done it. Shame on you. Don’t do it again,” they will do it again keep asking forgiveness.

That will be another systemic failure in a system that has lost sight of the fact that justice is about the process, not the result.

I fear that it won’t be long before the all-volunteer force is gone simply because no one will volunteer to be treated like they still work for King George.

Since this first came up on CAAFlog last week, I’ve asked multiple judge advocates their opinion of what happened here, ranging from Kool-Aid drinkers to true believers. Even the guys that usually guzzle the blue Kool-Aid say this wasn’t kosher. This looks like it was a huge pissing contest that got way out of control.

What a mess! I do hope the JA folks involved see their careers end. First, as a DC, I would never accept evidence from a client. The phrase I learned early on is, “You can’t leave it here.” Doing so opened them to an unnecessary risk. More importantly, if JA thought they had the phone, they simply should have asked for it, and if refused, moved to compel it.
Perhaps more easily, they could have ordered the client to turn it over. Whether he left it at the ADC office or not, he remains owner and refusal to comply would add another offense and be more above board than searching DC office. As officers of the court, if they asked DC about the phone, DC would have been obliged to answer truthfully. If they have it, and JA for whatever reason does not want to work a judge for it, then show up and say, we’ve got the search authorization for the phone, either show us where it is or we’ll have to search through files/folders we don’t need to see in order to find it. Again, keep it all above board and as narrow as possible; respect the privilege and law. DC should then have pointed to it. The way this played out was wrong on so many levels, I have to fault JA for how this came about. It is bush-league, not leadership quality. DC may have been foolish to hold the phone, but the search option and execution was seriously flawed and heads should roll.
WRT to ramification on other cases, I agree there should be consequences to the Gov’t but I don’t agree dismissal with prejudice. I think there could be a rebuttal presumption of prejudice but it’s like a Kastigar process where the Gov’t has the burden to prove no prejudice BRD. In many cases, they can probably do that as there may have been nothing in the files of consequence at the time. The best thing the Gov’t can do right now is order those in the search not to talk to anyone, put them as far away from JA and investigations as possible, have a neutral person independently review and do damage control. If there’s anyway for JA to save themselves, it should be admonishing how this played out and take swift action to resolve in IMHO.

Do we know what evidence was on the phone? For instance, let’s say that the case involved sexual assault and the phone contained an audio recording of the sexual act where the complaining witness was talking dirty, sounded lucid, and directed the accused on what she liked and how she liked it. Clearly the audio would be exculpatory. So is there really a duty to turn the phone over? My client who was charged 8 different ways because he shot a fake handgun in the middle of Ft. Henning at midnight on a Friday gave me his fake handgun period to trial, and I did not turn it over because I did file a discovery request with the Government. He was fully acquitted, and the SOCO investigation and Florida Bar investigation cleared me, partially bc the gun was exculpatory and I did not engage in discovery. So does anyone know what evidence the phone contained? Because perhaps there was no duty to turn it over.

There may be some exculpatory texts sitting on a pile of incriminating searches and contraband images; with smart phones and computers you have no idea what you have until after the forsensic analysis…I would never advise DC to take possession of anything they could not first certify as “clean.” Time will tell in this case.

What needs to happen is for state bars to start enforcing their ethics rules against judge advocates rather than trusting the various JAG Corps to do so. If people started losing their licenses, and by extension their military careers as well, for this stuff, then we might see some actual professional standards develop. The first step to states exercising control of those members of their bars who are serving as judge advocates is for folks to start filing state bar complaints for violations rather than referring the matter to military legal channels.

If I were the military judge, I don’t think I would automatically dismiss every case involved. However, I would bar every member of the SJA office and every local investigator from any participation in trial or further investigation. I would force the Marines to bring in completely new teams for both investigation and future trials. If they failed to do so, I would dismiss any case where they could not prove that the entire case was independently investigated and prosecuted by untainted people.
Considering how all the key players of the Salyer fiasco were apparently rewarded with plush assignments, we evidently need to do something to reign in these knuckleheads.

If that is the case, i.e. the evidence was for exculpatory texts between the complaining witness and the accused, then I would hope the search authorization articulated that the crime the commander believed was being committed was a False Official Statement.

Assuming that the phone contained exculpatory texts, then a search for other contraband would be purely speculative. Also, I don’t disparage the defense counsel in such a situation because rarely have I ever taken a piece of excupatory evidence to a trial counsel who didn’t turn around and, in my personal belief, coach the witness into rationalizing how the Accused was still guilty.

And, there is no duty to disclose exculpatory evidence if the Defense did not engage in discovery. As my RDC determined in a SOCO complaint against me:

(1) Although this memo does not dispute the assertion in the SJA’s 22 August 2006 memorandum that it is the Army’s position that a defense attorney may not accept evidence of a crime unless he or she makes the same available to a prosecutor or the investigating law enforcement agency, his conclusion that the replica handgun was “evidence” of a crime is not supported.
(4) To adopt the view of the Government’s memo would require all defense counsel when analyzing receipt of tangible objects to only view the object in the same manner as the Government and to only consider theories consistent with the Government’s. So, one would always have to conclude that any tangible object, even if not the object alleged by the government, would always have to be “evidence of a crime” or evidence of some crime. Further, the Government’s view in this case appears to require the Defense to turn over any tangible objects ever received under the theory that the reciprocal discovery rules have been relaxed. This runs completely contrary to the adversarial process, denies any other factual scenario except that put forth by the government, defies logic, and is wholly inconsistent with the R.C.M.s.
e. In this case, CPT Fischer made a tactical decision not to request discovery from the government IAW R.C.M. 701(a). This decision is clearly authorized pursuant to the Rules for Courts-Martial. Despite his decision, the Government requested reciprocal discovery IAW R.C.M. 701(b)(3). Contrary to the assertions in the 22 August 2006 memorandum from the SJA, Kyle did in fact affirmatively respond to the Government’s request. According to both Kyle and CPT ***** (the Senior Trial Counsel), Kyle telephonically contacted CPT ***** following receipt of the Government’s request and informed CPT ***** that he had no obligation to respond to the Government’s request since he had not submitted a Discovery Request.

And I thought the OSJA office at Benning was bad. They can’t hold a candle to the the Pendleton OSJA.

k fischer: If it did contain exculpatory material, at least it is good to see investigators are finally interested in getting exculpatory information that they will storm into the defense counsel office and take it by force. (that was sarcasm) I am glad you brought up the reluctance to turn over exculpatory text messages/emails to trial counsel. For the same reason you mentioned, I never turned them over unless I was sure it would kill the case because I never trusted the trial counsel not to call the complainant in and give her the opportunity to “explain” the texts/emails or the SJA to bury it in the disposition recommendation casefile. And when I did turn them over I only turned them over to the commander and I waited until JA had briefed the commander with their recommendation on disposition because I wanted the commander to know that what JA briefed them on had only a passing resemblance to the truth and what a member panel would eventually see.

On the issue of production of exculpatory evidence and whether to make a discovery request . . . you only need to disclose evidence to the Government that you intend to offer in your case in chief. If you can get it into evidence on cross on the G’s case, then you need not disclose even if you engaged in discovery. I had a trusted agent give me many documents that were exculpatory in the McKinney case — e-mails to the SMA from his accusers that the Government never looked for or knew about (and we didn’t ask for since we already had them); court documents where another accuser admitted to defrauding the US of over $10K and lying about it during a divorce; all used in cross examination, much to the consternation of the Government TC, but when the Army Judiciary Chief Judge read the rule upon G objection, he shrugged his shoulders and said, “overruled, Mr. Gittins is right.” You have to love that in front of the panel.

There seems to be an assumption that the government is the rightful keeper of the evidence and that this defense counsel did something wrong by taking possession of a piece of it. No one has cited a rule prohibiting a defense attorney from taking possession of evidence, even purely incriminating evidence. To the contrary, JAGINST 5803.1D (The DoN Rules of Professional Responsibility) Rule 3.4 and its comments indicate both parties can possesses evidence. Comment (1) states: “The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties.” Comment (2) reinforces the parties right to obtain evidence from one another through discovery or subpoena, and therefore warns against actions that alter, conceal or destroy evidence. Comment (3) to the rule says that the attorney in possession of physical evidence implicating the client in criminal conduct shall disclose the location or shall deliver the item when required by law or court order. Comment (2) to ABA Rule 3.4 goes even further and says “Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence.”
Based on the news reports, the Defense counsel notified opposing counsel that he possessed the phone and that he would not turn it over without a court order. This seems to be exactly what Rule 3.4 anticipates. The defense attorney competitively marshaled his evidence and then notified the opposing party of its existence. (I’m assuming here that the DC didn’t alter the evidence). At that point if the prosecutor wanted the evidence he was obliged to use the discovery process. He could issue a subpoena, but of course the DC could file a motion to quash. In that case it goes in front of a judge and the prosecutor has to justify to the court why an American citizen must turn over his private property to the government. The client has privacy rights, property rights in his phone, a right to prepare his defense, and the Article 46 right to equal opportunity to obtain evidence—it’s reasonable to require the government to get this phone by subpoena or motion to the court where at least the defense gets to have notice and an opportunity to be heard. It seems here that the convening authority has an all-too-common affinity for the prosecution and was willing to dispense with the complications of the discovery process.
Many of the MPRE hypotheticals that we are familiar with regarding defense attorneys turning over evidence are inapplicable. Usually they involve contraband (handguns in jurisdictions where they are illegal, drugs, stolen property, etc) and the defense attorney’s position does not grant special authority to possess contraband. The cell phone of the client, however, is not contraband and there is no duty to automatically turn it over.

There is absolutely good reason for the defense attorney to want to get the first chance to examine the phone. Twice in my short practice the U.S. seized my clients’ cell phones and filed them away in the evidence locker without searching them or even bothering to get search authorizations. Weeks and months of preparation were lost trying to get access to the evidence. When the defense wanted to analyze the phone for possible exculpatory evidence the government required that we litigate it and exhaustively describe the evidence we were looking for. In reaction to my request that I be granted an opportunity to review the phone without supervision the Military Judge said, “that’s not how it’s done.” No case law, no statute, just “that’s not how it’s done.” So then I had to conduct my trial preparation in front of the prosecutor who had an opportunity to note every voicemail I listened to and every picture I looked at. Mind you, this is my client’s phone and the U.S. hadn’t even bothered to get a search authorization, so in addition to breaching attorney work product, the requirement to analyze the phone in front of the prosecutor also essentially forced us to waive the client’s 4th Amendment search and seizure rights.

Remember, case law is pretty clear on what happens when the Defense fails to turn over somethign in discovery. The appropriate sanction is a continuance for the Government to investigate the new evidence. This does not mean that you, as a defense attorney, get to hide evidence, but do anything unsavory, but if you have a piece of exculpatory evidence and you introduce it at trial without in your case in chief without first disclosing it, and the Government objects on the basis that you failed to turn it over in discovery, the appropriate sanction is a recess.

I have gone to prosecutors a few times in a good faith effort to have charges dismissed when I possessed evidence that indicated my client was innocent. Only once has my sharing the exculpatory evidence with the prosecutor resulted in the action immediately being dismissed, and it was an admin separation for forcible anal sodomy. In that case as much as the TC assured me that if I showed her the pictures indicating that her alleged victim was in fact extremely gay and attracted to my client as he sent him the pictures way before the alleged sodomy, I still did not trust her, but I showed her the pictures the day before the board. But, she was true to her word and had the case dismissed, but unfortunately she got out of the military six months after the dismissal.

Compare that to the minimum of five cases that I can think of off the top of my head that resulted in acquittals or dismissals after the Government changed their strategy upon being made aware of the exculpatory evidence , and I have unfortunately learned that the default policy is to not trust CID, the SJA, the SVP, the TC, and sometimes, but very rarely, the TDS counsel with exculpatory evidence. It is far better to save it for trial and a surprise impeachment of the Government’s chief witness than risk sharing it with the TC.

I’d like to think most of the government counsel I’ve worked with, and the ones I’ve trained, would look at exculpatory evidence, and if it truly is exculpatory, dismiss/alter the charges accordingly. But I recognize that isn’t universal, and at the end of the day as DC, I’d have to really trust and personally know the government folks involved. Still, getting something squashed before it even goes to trial is always better than winning at trial IMO. Tough balance, harder for civilian counsel when they often don’t have the chance to work with/assess government counsel at any length.

Thank you for the link phil cave. Mr. Sisk’s article addresses the issues more clearly (and with more citations) than my earlier entry.
From the article:

A lawyer representing an actual or potential criminal defendant “has the same privilege as a prosecutor to possess and examine [physical evidence] for the lawful purpose of assisting in the trial of criminal cases.” Section 119 of the Restatement of the Law Governing Lawyers

Also, this:

To compel an attorney who has examined evidence, which the attorney uncovered through the client’s confidential communication, to then pass it on to law enforcement is constitutionally dubious. In that scenario, the accused has been degraded into “the deluded instrument of his own conviction.” As Monroe Freedman and Abbe Smith emphasize, a criminal “defendant’s constitutional privilege against self-incrimination [is] “safeguarded by his constitutional right to counsel . . . .” At the very least, as Kevin Reitz rightly insists, “[t]here should be no constitutional tariff upon the act of obtaining counsel.”

Zeke
This is what I suggest. An informal court be set up( The DC Star Chamber) This court can decide who gets grieved and then have a panel of volunteer attorneys in different states to implement it. My nominations are solely based on reading this blog as I know none of you. The panel should have Charles Gittins as Chief Judge, Phil Cave, DC GoneGalt, kfischer and last but not least Princess Leia. A monthly list can be prepared and put on the blog. The determination is final with no right of appeal.

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